Tuesday, June 03, 2008

WASHINGTON (AP) - For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution's protection against unreasonable searches and seizures on U.S. soil didn't apply to its efforts to protect against terrorism.

That view was expressed in a secret Justice Department legal memo dated Oct. 23, 2001. The administration on Wednesday stressed that it now disavows that view.

The October 2001 memo was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time. The administration had asked the department for an opinion on the legality of potential responses to terrorist activity.

The 37-page memo is classified and has not been released. Its existence was disclosed Tuesday in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union.

"Our office recently concluded that the Fourth Amendment had no application to domestic military operations," the footnote states, referring to a document titled "Authority for Use of Military Force to Combat Terrorist Activities Within the United States."

Exactly what domestic military action was covered by the October memo is unclear. But federal documents indicate that the memo relates to the National Security Agency's Terrorist Surveillance Program.

That program intercepted phone calls and e-mails on U.S. soil, bypassing the normal legal requirement that such eavesdropping be authorized by a secret federal court. The program began after the Sept. 11 terrorist attacks and continued until Jan. 17, 2007, when the White House resumed seeking surveillance warrants from the Foreign Intelligence Surveillance Court.

The October memo was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA's secret wiretapping program for the first time.

The government itself related the October memo to the TSP program when it included it on a list of documents that were responsive to the ACLU's request for records from the program. It refused to hand them over.

On Wednesday, Justice Department spokesman Brian Roehrkasse said the statement in the footnote does not reflect the current view of the department's Office of Legal Counsel.

"We disagree with the proposition that the Fourth Amendment has no application to domestic military operations," he said. "Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search."

Roehrkasse would not say exactly when that legal opinion was overturned internally. But he pointed to a January 2006 white paper issued by the Justice Department a month after the TSP was revealed by The New York Times.

"The white paper does not suggest in any way that the Fourth Amendment does not apply to domestic military activities, and that is not the position of the Office of Legal Counsel," he said.

Suzanne Spaulding, a national security law expert and former assistant general counsel at the Central Intelligence Agency, said she found the Fourth Amendment reference in the footnote troubling, but added: "To know (the Justice Department) no longer thinks this is a legitimate statement is reassuring."

"The recent disclosures underscore the Bush administration's extraordinarily sweeping conception of executive power," said Jameel Jaffer, director of the ACLU's National Security Project. "The administration's lawyers believe the president should be permitted to violate statutory law, to violate international treaties, and even to violate the Fourth Amendment inside the U.S. They believe that the president should be above the law."

"Each time one of these memos comes out you have to come up with a more extreme way to characterize it," Jaffer said.

The ACLU is challenging in court the government's withholding of the October 2001 memo.

The breach occurred before the FBI enacted broad new reforms in March 2007 to prevent future lapses, FBI Director Robert Mueller said. And it was caused, in part, by banks, telecommunication companies and other private businesses giving the FBI more personal client data than was requested.

Testifying at a Senate Judiciary Committee hearing, Mueller raised the issue of the FBI's controversial use of so-called national security letters in reference to an upcoming report on the topic by the Justice Department's inspector general.

An audit by the inspector general last year found the FBI demanded personal records without official authorization or otherwise collected more data than allowed in dozens of cases between 2003 and 2005. Additionally, last year's audit found that the FBI had underreported to Congress how many national security letters were requested by more than 4,600.

The new audit, which examines use of national security letters issued in 2006, "will identify issues similar to those in the report issued last March," Mueller told senators. The privacy abuse "predates the reforms we now have in place," he said.

"We are committed to ensuring that we not only get this right, but maintain the vital trust of the American people," Mueller said. He offered no additional details about the upcoming audit.

National security letters, as outlined in the USA Patriot Act, are administrative subpoenas used in suspected terrorism and espionage cases. They allow the FBI to require telephone companies, Internet service providers, banks, credit bureaus and other businesses to produce highly personal records about their customers or subscribers without a judge's approval.

Last year's audit by Justice Department Inspector General Glenn A. Fine, issued March 9, 2007, blamed agent error and shoddy record-keeping for the bulk of the problems and did not find any indication of criminal misconduct. Fine's latest report is expected to be released as early as next week.

Several Justice Department and FBI officials familiar with the upcoming 2006 findings have said privately the new audit will show national security letters were used incorrectly at a similar rate as during the previous three years.

The number of national security letters issued by the FBI skyrocketed in the years after the Patriot Act became law in 2001, according to last year's report. Fine's annual review is required by Congress, over the objections of the Bush administration.

In 2005, for example, Fine's office found more than 1,000 violations within 19,000 FBI requests to obtain 47,000 records. Each letter issued may contain several requests.

In contrast to the strong concerns expressed by Congress and civil liberties groups after last year's inspector general's report was issued, Mueller's disclosure drew no criticism from senators during just over two hours of testimony Wednesday.

Speaking before the FBI chief, Senate Judiciary Chairman Patrick Leahy, D-Vt., urged Mueller to be more vigilant in correcting what he called "widespread illegal and improper use of national security letters."

"Everybody wants to stop terrorists. But we also, though, as Americans, we believe in our privacy rights and we want those protected," Leahy said. "There has to be a better chain of command for this. You cannot just have an FBI agent who decides he'd like to obtain Americans' records, bank records or anything else and do it just because they want to."

Following last year's audit, the Justice Department enacted guidelines that sternly reminded FBI agents to carefully follow the rules governing national security letters. The new rules caution agents to review all data before it is transferred into FBI databases to make sure that only the information specifically requested is used.

Fine's upcoming report also credits the FBI with putting the additional checks in place to make sure privacy rights aren't violated, according to a Justice official familiar with its findings.

Critics seized on Mueller's testimony as proof that a judge should sign off on the national security letters before they are issued.

"The credibility factor shows there needs to be outside oversight," said former FBI agent Michael German, now a national security adviser for the American Civil Liberties Union. He also cast doubt on the FBI's reforms.

"There were guidelines before, and there were laws before, and the FBI violated those laws," German said. "And the idea that new guidelines would make a difference, I think cuts against rationality."